Tag Archives: Discretion

Discretion, Probation Parole PRCS, Sentencing, Statutory interpretation

Case 000801

Posted on by Gary McCurdy

Error and/or relief

The court erred in believing that the defendant was presumptively ineligible for probation. Remanded for resentencing.

First Holding:

All defendants are eligible for probation, in the discretion of the sentencing court, unless a statute provides otherwise. Some statutes bar probation absolutely, while others provide that a defendant is ineligible except in unusual cases where the interests of justice would be served. Here, the trial court apparently relied on the probation report and defense counsel to conclude section 1203(e)(3) rendered the defendant ineligible for probation.

Authority:

People v. Aubrey (1998) 65 Cal.App.4th 279, 282

Second Holding:

Section 1203(e), provides in relevant part, that except in unusual cases in which the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which that person has been convicted. By its terms, section 1203(e)(3) renders a defendant conditionally ineligible for probation only when there has been a finding the injury was willful, i.e., intentional.

Here, there was no such finding, and the People concede that the defendant’s no contest plea does not establish that she admitted to willfully inflicting great bodily injury on the victim. Thus, absent any additional findings by the trial court, section 1203(e) did not render her presumptively ineligible for probation, and the trial court erred in applying that presumption.

Authority:

PEN 1203(e)(3)

People v. Lewis (2004) 120 Cal.App.4th 837, 854

Third Holding:

Where the sentencing court bases its determination to deny probation in significant part upon an erroneous impression of the defendant’s legal status, fundamental fairness requires that the defendant be afforded a new hearing and an informed, intelligent and just decision on the basis of the facts. Here, the record demonstrates the trial court misunderstood the scope of its discretion and may have relied upon the error to deny probation. A new sentencing hearing is therefore necessary for the trial court to consider the defendant’s probation request under the appropriate legal standard.

Authority:

People v. Ruiz (1975) 14 Cal.3d 163, 168

People v. Manriquez (1991) 235 Cal.App.3d 1614, 1620

People v. Downey (2000) 82 Cal.App.4th 899, 912 [where a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination]

Eighth Amendment, Sentencing

Case 000800

Posted on by Gary McCurdy

Error and/or relief

It is not clear if the court understood the scope of its sentencing authority. The record is ambiguous as to whether the court found the sentence constitutionally permissible or believed it was obligated to impose the sentence regardless of any constitutional concerns. We accordingly reverse the judgment and remand for further proceedings consistent with this opinion.

First Holding:

The One Strike law mandates a sentence of 15 or 25 years to life for certain designated sexual offenses committed under specified aggravating circumstances. A lewd or lascivious act under section 288(a) is a qualifying sexual offense. The default sentence is 15 years to life if the jury has found the crime was committed under one of the circumstances listed in subdivision (e) of the One Strike law, among which is the multiple victim circumstance. But if multiple victims are under the age of 14 years old, the sentence is 25 years to life. A court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (e) for any person who is subject to punishment under the One Strike law.

Authority:

PEN 667.61

In re Vaquera (2024) 15 Cal.5th 706, 713

Second Holding:

Where, as here, a defendant contends a sentence constitutes cruel and unusual punishment, the judicial inquiry commences with great deference to the Legislature. Yet legislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment. As pertinent here, article I, section 17, of the California Constitution proscribes cruel or unusual punishment. A prison sentence violates this proscription if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.

Authority:

Cal. Const., art. I, sec. 17

People v. Martinez (1999) 76 Cal.App.4th 489, 494

In re Lynch (1972) 8 Cal.3d 410, 414, superseded by statute on another ground as stated in In re Palmer (2021) 10 Cal.5th 959.

People v. Christensen (2014) 229 Cal.App.4th 781, 806

Third Holding:

Courts use a three-part test to determine if a particular sentence is disproportionate to the offense for which it is imposed. First, courts consider the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. Second, courts compare the challenged punishment with punishments imposed for more serious crimes in the same jurisdiction. Finally, courts compare the challenged punishment with punishments imposed for the same offense in other jurisdictions.

Authority:

People v. Christensen (2014) 229 Cal.App.4th 781, 806

In re Lynch (1972) 8 Cal.3d 410, 425-427

Fourth Holding:

A mandatory punishment provided by law may contravene constitutional principles and a court has the authority to intervene under such circumstances to prevent an unconstitutional punishment from being imposed. Here, it is not clear if the trial court was aware of its authority to not impose a life sentence under the One Strike law assuming it found the sentence amounted to cruel or unusual punishment. The court specifically stated it would not have imposed the mandated sentence if it had discretion. The court noted the prosecutor previously offered a non-life sentence, and the court lamented that defendant’s counsel did not represent him during settlement discussions because the court believed a life sentence could have been avoided.

But the court concluded that it didn’t find that that statute is cruel and unusual, and so that it had no choice but to give the sentence. The court later stated that it didn’t believe it is a cruel and unusual statute because there were multiple victims under the age of 14. Given the court’s indication that it viewed a different sentence as more appropriate, it is not clear if the court merely found the statute was not cruel and unusual on its face or if it found the administration of the sentence as applied to defendant was not cruel and unusual punishment. Under these circumstances, remand is appropriate.

We accordingly remand the matter for the trial court to clarify whether the mandated statutory sentence as applied to defendant constitutes cruel or unusual punishment. If the court finds the mandated statutory sentence is constitutional, it may impose the sentence. If the court finds the mandated statutory sentence is unconstitutional, it may exercise its authority to impose a different sentence. In doing so, we express no opinion as to whether the mandated statutory sentence is cruel or unusual punishment as applied to defendant. The trial court is free to clarify its holding on remand.

Authority:

People v. Felix (2003) 108 Cal.App.4th 994, 999

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000798

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying his petition either because the court either improperly shifted the burden to the defendant to prove his mental disorder was a significant factor in his charged crimes, or because substantial evidence does not support a finding by clear and convincing evidence that his mental disorder was not such a factor.

First Holding:

Penal Code section 1001.36 provides that a defendant in a criminal case is eligible for mental health diversion if he demonstrates: (1) he has been diagnosed with a recognized mental disorder; and (2) that disorder was a significant factor in the commission of the charged crime.

The defendant bears the burden of making a prima facie showing that he or she meets the minimum requirements of eligibility for diversion. However, if the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

PEN 1001.36(b)(2)

People v. Gerson (2022) 80 Cal.App.5th 1067, 1078–1079

Second Holding:

Additionally, the statute gives the trial court discretion to deny diversion even if the statutory requirements are met. However, this residual discretion must be exercised consistent with the principles and purpose of the governing law.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 134

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401

Third Holding:

We review the trial court’s denial of mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard or when it bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

People v. Pacheco (2022) 75 Cal.App.5th 207, 213

People v. Moine (2021) 62 Cal.App.5th 440, 449

Fourth Holding:

A trial court is not bound by an expert’s testimony and opinion. But even were the court to discount the psychiatrist’s report’s conclusion in its entirety, the absence of evidence proving that petitioner’s mental disorder was a factor in the commission of the offenses is not substantial evidence supporting a finding by clear and convincing evidence that petitioner’s mental disorder was not a factor in the commission of the offenses. It was the prosecution’s burden to present such clear and convincing evidence.

Here, it appears that the court either placed the burden on the defendant to demonstrate his mental disorder was a significant factor in the commission of the charged offenses or found clear and convincing evidence that the mental disorder was not a significant factor. In other words, the court either applied the wrong legal standard or based its decision on a factual finding unsupported by substantial evidence. Either way, reversal is required.

Authority:

In re J.S. (2024) 105 Cal.App.5th 205, 212

In re Scott (2003) 29 Cal.4th 783, 823 [The fact finder determines the facts, not the experts. Indeed, the fact finder may reject even a unanimity of expert opinion]

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 404

People v. Moine (2021) 62 Cal.App.5th 440, 449

Discretion, Standard of review

Case 000789

Posted on by Gary McCurdy

Error and/or relief

We conclude the trial court abused its discretion. It failed to follow the governing statute’s directions. Its conclusion that the defendant posed an unreasonable risk to public safety, as defined by section 1001.36(c)(4), was unsupported by substantial evidence. Accordingly, we issue the requested writ of mandate and direct the court to grant the defendant’s motion for mental health diversion.

First Holding:

In 2018, the Legislature enacted section 1001.36 to create a diversion program for criminal defendants with diagnosed mental health disorders. Diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment. By its terms, section 1001.36 was designed to encourage trial courts to broadly authorize pretrial mental health diversion, providing treatment for qualifying mental disorders that result in criminal behavior.

Authority:

PEN 1001.36

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 887, 890

Second Holding:

The decision whether to grant diversion is a two-step process. First, the court determines if the defendant satisfies the eligibility requirements set forth in section 1001.36(b). Defendants are eligible if they have been diagnosed with a recognized mental disorder that was a significant factor in the commission of the criminal offense with which they are charged.

Authority:

PEN 1001.36(a) – (b)

Third Holding:

Second, the court determines if the defendant is suitable for diversion under the factors set forth in section 1001.36(c). Those factors are: (1) in the opinion of a qualified mental health expert, the defendant’s mental disorder would respond to treatment; (2) the defendant agrees to waive their speedy trial rights; (3) the defendant agrees to comply with treatment requirements; and (4) the defendant will not pose an unreasonable risk of danger to public safety as defined in sections 1170.18 and 667(e)(2)(C)(iv).

Authority:

PEN 1001.36(a) and (c)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

Fourth Holding:

Finally, even when all eligibility and suitability factors are met, courts have discretion to deny mental health diversion. But this residual discretion must be exercised consistent with the principles and purpose of the governing law.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 895-896

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 888

Fifth Holding:

Our review is for abuse of discretion.

Authority:

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

Sixth Holding:

Under section 1170.18, the Legislature has narrowly defined an unreasonable risk of danger to public safety to mean an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). The violent felonies encompassed in this definition are known as super strikes. The super strikes are murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, any serious or violent felony punishable by death or life imprisonment, or any sexually violent offenses or sexual offense committed against minors under the age of 14.

Authority:

PEN 1170.18(c)

People v Moine (2021) 62 Cal.App.5th 440, 449

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1150-1151

Seventh Holding:

By statute, when determining the risk of danger, t]he court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate. A defendant who seeks diversion is not being sentenced, so the general sentencing objectives set forth in rule 4.410 of the California Rules of Court are inapplicable.

Authority:

PEN 1001.36(c)(4)

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149

Eighth Holding:

A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence.

The trial court expressed that it could not know whether the defendant was going to commit a super strike, and based on his two violent incidents from 2007 and 2010, the trial court concluded that there was a danger that there was a likelihood that the defendant could commit a super strike, thereby permitting the trial court to exercise its residual discretion to deny diversion.

But the court misunderstood what was required. The plain language of the statute requires a finding that a defendant will not pose an unreasonable risk of committing a super strike.

The statute does not, as the trial court suggested, require a prediction that a defendant will not, in fact, commit a super strike. The correct analysis thus requires assessing probabilities; not predicting outcomes, as the trial court incorrectly understood.

These are two distinct types of inquiry. Applying the correct standard to the record before us, we conclude the evidence is insubstantial that the defendant is too dangerous to be treated in the community on the ground that he poses an unreasonable risk of committing a super strike.

A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence.

Authority:

PEN 1001.36(c)(4)

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

People v. Cluff (2001) 87 Cal.App.4th 991, 998

Ninth Holding:

The only question that remains is whether further proceedings are required. We conclude they are not. The trial court found that the defendant satisfied all criteria for diversion except the public safety factor, leaving nothing further to be decided. The People do not argue otherwise. Under these circumstances, we will reverse the court’s order with directions to grant the defendant’s motion unless the People present changed circumstances that warrant rehearing.

Authority:

People v. Williams (2021) 63 Cal.App.5th 990, 1005

 

Discretion, Duty of the court, Standard of review

Case 000786

Posted on by Gary McCurdy

Error and/or relief

By shifting the burden of proof from the People to appellant, the trial court erred in denying the defendant’s petition to terminate his duty to register as a sex offender.

First Holding:

Before 2021, if an offender was required to register as a sex offender, they were required to register for life. Beginning on January 1, 2021, SB 384 (2017–2018 Reg. Sess.) restructured the sex offender registration requirement into three tiers: tier one, registrants must register for at least 10 years; tier two, for at least 20 years; and tier three, for their lifetimes.

Authority:

PEN 290(d)

People v. Franco (2024) 99 Cal.App.5th 184, 190

People v. Thai (2023) 90 Cal.App.5th 427, 432

Second Holding:

Appellant is a tier two registrant who is required to register for at least 20 years. Provided the registrant meets certain criteria, including registering for the required minimum period, a registrant can petition the superior court to terminate the registration requirement.

Authority:

PEN 290.5(a)-(c)

Third Holding:

Upon receiving notice of a petition to terminate registration, the district attorney may object and present evidence demonstrating that community safety would be significantly enhanced by continued registration.

The prosecutor has the burden of producing evidence to establish terminating the registration requirement would considerably raise the threat to society because the defendant is currently likely to reoffend. The trial court’s task is to assess whether the People have carried their burden of producing evidence establishing that requiring continued registration appreciably increases society’s safety.

Authority:

People v. Thai (2023) 90 Cal.App.5th 427, 433

People v. Franco (2024) 99 Cal.App.5th 184, 192

Fourth Holding:

In making this determination, the trial court may consider the following seven factors: [(1)] the nature and facts of the registerable offense; (2) the age and number of victims; (3) whether any victim was a stranger at the time of the offense (known to the offender for less than 24 hours); (4) criminal and relevant noncriminal behavior before and after conviction for the registerable offense; (5) the time period during which the person has not reoffended; (6) successful completion, if any, of a Sex Offender Management Board-certified sex offender treatment program; and (7) the person’s current risk of sexual or violent reoffense, including the person’s risk levels on SARATSO static, dynamic, and violence risk assessment instruments, if available.

The trial court may base its determination upon declarations, affidavits, police reports, or any other evidence submitted by the parties which is reliable, material, and relevant.

Authority:

PEN 290.5(a)(3)

Fifth Holding:

The standard of review applied by an appellate court reviewing a trial court’s order on a petition for termination is abuse of discretion. The showing required to establish an abuse of discretion is as follows: To establish an abuse of discretion, the defendant must demonstrate the trial court’s decision fell outside the bounds of reason, i.e., was arbitrary, capricious, or patently absurd.

The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious. A trial court abuses its discretion when its factual findings are not supported by the evidence, or its decision is based on an incorrect legal standard.

Authority:

People v. Thai (2023) 90 Cal.App.5th 427, 433

Sixth Holding:

Section 290.5 required the prosecutor to prove that appellant was currently likely to reoffend and that community safety would be significantly enhanced by continued registration. Here, the trial court denied the petition, at least in part, due to the absence of evidence that appellant no longer posed the threat he did when he committed the registrable offenses. Doing so placed the burden on appellant, rather than on the prosecutor, to produce evidence of the current threat, if any, posed by appellant. This was error. We remand for a new hearing.

Authority:

PEN 290.5(a)(2)-(3)

People v. Thai (2023) 90 Cal.App.5th 427, 432-433

People v. Franco (2024) 99 Cal.App.5th 184, 192

Seventh Holding:

(Gary Note: The court proceeded to explain why the error was prejudicial, applying the Watson standard, based on facts specific to this defendant, and the details need not be recited in this summary.)

Authority:

People v. Watson (1956) 46 Cal.2d 818, 836

Elements of crime, Jury instructions, Standard of review, Sufficiency of and substantial evidence

Case 000771

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it failed to instruct the jury regarding specific intent for count 2, and the trial court abused its discretion when it imposed the registration requirement, We reverse count 2 and strike the registration requirement, and in all other respects affirm.

First Holding:

Trial courts have a sua sponte duty to instruct on every element of charged offenses. Instructions completely removing the issue of intent from the jury’s consideration may constitute a denial of federal due process principles. We review independently the legal adequacy of a jury instruction.

Authority:

People v. Mil (2012) 53 Cal.4th 400, 409

People v. Lee (1987) 43 Cal.3d 666, 673,

People v. Cole (2004) 33 Cal.4th 1158, 1211

Second Holding:

The court instructed the jury that count 2 required “general criminal intent,” which is established when the defendant intentionally does a prohibited act.

This instruction was erroneous. The crime in count 2 is a specific intent crime because it requires the act to be done with the intent to accomplish a separate objective.

In addition, the instruction given on the crime was incomplete, because it included the statutory language for the prohibited conduct, but it omitted the requirement that the physical act be performed for a separate reason.

Specific intent is not presumed from the doing of the unlawful act.

Authority:

EVID 668

People v. ZarateCastillo (2016) 244 Cal.App.4th 1161, 1167 [construing equivalent language of a similar section]

Third Holding:

We assess the prejudicial effect of the failure to instruct regarding the required element of mental state pursuant to Chapman. We must reverse unless it appears beyond a reasonable doubt that the error did not contribute to the jury’s verdict.

Instructional error is harmless where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, but not where the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

In our view, the instructional error is not harmless because the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

Authority:

Chapman v. California (1967) 386 U.S. 18, 24

People v. Mil (2012) 53 Cal.4th 400, 409

Neder v. United States (1999) 527 U.S. 1, 19

Fourth Holding:

Substantial evidence did not support the trial court’s order that the defendant register as a sex offender. Section 290.006 requires a defendant to register as a sex offender if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. Section 290.006 does not include sexual abuse as a basis for registration.

Authority:

PEN 290.006

Fifth Holding:

We review imposition of a registration requirement pursuant to section 290.006 for abuse of discretion. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.

A trial court abuses its discretion when its factual findings are not supported by the evidence. Here, there was no evidence that the murder (count 1) was committed for sexual gratification. The registration requirement must be stricken.

If the defendant is retried on the reversed count by a properly instructed jury, the court may reconsider the registration requirement based on the evidence presented at that trial.

Authority:

People v. Picklesimer (2010) 48 Cal.4th 330, 335

People v. Thai (2023) 90 Cal.App.5th 427, 433

Sixth Holding:

Because sufficient evidence was presented that could support a guilty verdict if the jury were properly instructed, the People may retry the defendant for count 2 on remand.

Authority:

People v. Hatch (2000) 22 Cal.4th 260, 271–272

Appellate Principles, Racial Justice Act, Standard of review

Case 000770

Posted on by Gary McCurdy

Error and/or relief

In 2023, the defendant filed a motion in the trial court for postjudgment discovery pursuant to Penal Code section 1054.9, in advance of filing a petition for writ of habeas corpus. The defendant alleged he was arrested, charged, and convicted as a result of racial bias by the police department and the district attorney, and that his defense counsel was prejudicially ineffective. He appealed from the court’s denial of a portion of his motion. It was not an appealable order. We treat this as a petition for writ of mandate.

(Gary note: The court denied the petition, but I have included the “gold”–its principles–for educational reasons. Which is really the point of this entire blog, of course.)

First Holding:

A party must seek review of the trial court’s denial of a section 1054.9 motion for postconviction discovery by filing a petition for writ of mandate rather than an appeal.

Authority:

In re Steele (2004) 32 Cal.4th 682, 688

People v. Serrano (2024) 106 Cal.App.5th 276, 292

Second Holding:

Given the procedural background of this case, rather than dismiss the appeal, we exercise our discretion to treat it as a petition for writ of mandate in the interests of judicial economy.

Authority:

People v. Payne (1988) 202 Cal.App.3d 933, 937

People v. Picklesimer (2010) 48 Cal.4th 330, 335

Third Holding:

A motion for postjudgment discovery filed pursuant to section 1054.9 may be made in anticipation of filing a petition for writ of habeas corpus but before the petition is actually filed. However, the statute provides only limited discovery. It does not allow free-floating discovery asking for virtually anything the prosecution possesses.

Authority:

In re Steele (2004) 32 Cal.4th 682, 691

Barnett v. Superior Court (2010) 50 Cal.4th 890, 894

Fourth Holding:

The trial court’s ruling on a motion under section 1054.9 is reviewed for an abuse of discretion.

Authority:

Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 366

Gary Note:

(Gary note: I wrote a Gary Musings on the code section at issue here, focusing on the statutory duty it imposes on counsel to retain a copy of [insert appropriate adjective, depending on how YOU read the subdivision, but for lack of a better term at the moment, “certain” will do] clients’ files in a digital format in color. It went up on the blog on June 21, 2026, under the category “Gary Musings.” The article’s title is “To Save, Or Not To Save (the client’s file).”)

Amelioration, Discretion, Sentencing

Case 000759

Posted on by Gary McCurdy

Error and/or relief

At the hearing on a petition for resentencing (the opinion does not state under which statute the petition was filed, but in the body of the opinion it mentions section 1172.1, under which various entities can recommend the recall of sentence and resentencing), the trial court denied the defendant’s request to reduce his kidnap for robbery conviction to the lesser included offense of false imprisonment, stating that it did not have discretion to do so. The court erred, as it did have the discretion. We remand for the court to exercise its discretion.

First Holding:

Under section 1172.1(a)(3)(B), the trial court may in the interest of justice vacate the defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense then resentence the defendant to a reduced term of imprisonment. Defendant thus asked the trial court at the hearing on his petition to reduce his conviction on count 2 from a kidnap to false imprisonment as the other counts in his sentencing were false imprisonment. The trial court viewed the request as a challenge to the evidence and declined to revisit the evidence.

The court indicated that it did not have the discretion to do anything but impose the sentence on the count of conviction. The court’s comments confirm that it was unaware it had the discretion under section 1172.1, subdivision (a)(3)(B) to reduce defendant’s kidnapping-for-robbery conviction on count 2 to false imprisonment and resentence him to a reduced term for that offense. The trial court thus abused its sentencing discretion.

Authority:

PEN 1172.1(a)(3)(B)

In re White (2020) 9 Cal.5th 455, 470

Second Holding:

When, as here, the trial court is unaware of its sentencing discretion, we must remand for resentencing unless the record clearly indicates that the trial court would have made the same decision if it had been aware of its discretion. The record does not indicate that. If anything, it indicates that the trial court might have imposed a lesser sentence on count 2 if it believed it had the discretion to do so. We therefore remand for a full resentencing.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 424

People v. Terwilligar (2025) 109 Cal.App.5th 585, 601

People v. Moseley (2024) 105 Cal.App.5th 870, 874

People v. Marcus (2020) 45 Cal.App.5th 201, 214 [Because there are multiple counts and discretionary decisions at play, the trial court may consider the entire sentencing scheme and reconsider all sentencing choices.]

People v. Byucks (2018) 5 Cal.5th 857, 893

Amelioration, Discretion, Sentencing

Case 000756

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the court erred in believing that it had no discretion to consider defendant’s motion pursuant to dismiss prior serious felony enhancements under Romero. The matter is reversed and remanded to the trial court with directions to hold a full resentencing hearing at which the court must consider defendant’s Romero motion.

First Holding:

In 2019, in an effort to reduce the societal and fiscal burdens of incarceration, the Legislature passed SB 136, which amended section 667.5(b) to eliminate prior-prison-term enhancements for all prior crimes except for sexually violent offenses as defined in section 6600(b) of the Welfare and Institutions Code.

In 2021, SB 483 made this change retroactive. It enacted what is now Penal Code section 1172.75, which states that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

Second Holding:

A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing. To facilitate the process, the statute directs California’s Department of Corrections and Rehabilitation (CDCR) to identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a).

Upon receiving that information, the sentencing court must review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a). If the court determines that the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant. The statute provides separate deadlines for identification, review, and resentencing of individuals currently serving a sentence based on the enhancement and all other individuals.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

Third Holding:

Section 1172.75(d) sets forth detailed instructions for resentencing once a sentence has been recalled. As relevant here, subdivision (d) specifies: that resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.

Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. The trial court must apply the sentencing rules of the Judicial Council as well as any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

In addition, the court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

Fourth Holding:

Section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed. The trial court has the authority to exercise its discretion under section 1385(a) and Romero to strike any or all of defendant’s strike priors after recalling his sentence and for the purpose of resentencing him under section 1172.75.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

People v. Rogers (2025) 108 Cal.App.5th 340, 364

People v. Monroe (2022) 85 Cal.App.5th 393, 400

People v. Dowdy (2024) 107 Cal.App.5th 1, 9-13

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

Discretion, Standard of review

Case 000749

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying mental health diversion by basing its denial on findings not supported by substantial evidence and by exercising its discretion in a manner inconsistent with the principles and purpose of the statute.

(Gary’s note: The conclusion that the court abused its discretion relied extensively on facts reviewed by the Court of Appeal. These summaries are designed more to recite the various principles than to ferret out exactly how the principles achieved the result in the particular case. Sometimes it is obvious, but many times the outcome is very fact-dependent. Since these unpublished opinions cannot be cited as authority, it serves little purpose to recite the extensive details that led to the result in a particular case.)

First Holding:

We review a trial court’s order denying mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 135

People v. Gerson (2022) 80 Cal.App.5th 1067, 1080

People v. Moine (2021) 62 Cal.App.5th 440, 448

Second Holding:

Mental health diversion under section 1001.36 requires the trial court to find the defendant both eligible for diversion and suitable for the program. A defendant is eligible for mental health diversion if both of the following criteria are met: (1) defendant presents evidence he or she has been diagnosed with a mental disorder by a qualified mental health expert, identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSMD), within the last five years and (2) defendant’s mental disorder was a significant factor in the commission of the charged offense.

A court may consider any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.

Authority:

PEN 1001.36(b)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

Third Holding:

As to suitability, each of the following criteria must be met: (1) in the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment; (2) the defendant consents to diversion and waives their right to a speedy trial; (3) the defendant agrees to comply with treatment as a condition of diversion; and (4) the defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in the community.

In determining whether the defendant poses an unreasonable risk of danger to public safety, the court may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.

Authority:

PEN 1001.36(c)

Fourth Holding:

Even where defendants make a prima facie showing that they meet all the express statutory requirements, the court may still exercise its discretion to deny diversion. This residual discretion is not unfettered and must be exercised consistent with the principles and purpose of the governing law.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 134-135

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891 [court’s discretion must be informed by legal principles and purpose of statute]

People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977, superseded by statute on other grounds as indicated in People v. Lynall (2015) 233 Cal.App.4th 1102, 1108 [all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue]

Fifth Holding:

The stated purpose of mental health diversion is to keep people with mental disorders from entering and reentering the criminal justice system while protecting public safety, to give counties discretion in developing and implementing diversion across a continuum of care settings, and to provide mental health rehabilitative services. That purpose includes a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community.

A trial court’s denial of mental health diversion using its residual discretion should be limited to those situations where the purposes of the statute would not be achieved. Where the court chooses to exercise this residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals.

Authority:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 691

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892-893

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 138

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 891-892

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401

Appellate Principles, Discretion, Jury trial, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case 000746

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by discharging Juror No. 1 without good cause in violation of his rights under the Sixth Amendment. Our review of the record does not reveal it was a demonstrable reality that the discharged juror refused to deliberate. Rather, the juror listened to all the evidence, participated to some extent in the discussions in the jury room, and remained willing and able to vote concerning the verdict. The judgment is reversed.

First Holding:

If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged. In most circumstances, section 1089 is applied to remove a juror “who becomes physically or emotionally unable to continue to serve as a juror due to illness or other circumstances. However, section 1089 also has been applied “to permit the removal of a juror who refuses to deliberate, on the theory that such a juror is unable to perform his duty.

Authority:

PEN 1089

People v. Cleveland (2001) 25 Cal.4th 466, 474

Second Holding:

The removal of a seated juror for failing to deliberate is a serious matter that implicates a defendant’s state and federal constitutional right to a unanimous decision by the jury. Accordingly, great caution is required when deciding to excuse a sitting juror. The requirement of a unanimous criminal verdict is an important safeguard, long recognized in American jurisprudence. This safeguard rests on the premise that each individual juror must exercise his or her own judgment in evaluating the case. The fact that other jurors may disagree with a panel member’s conclusions, or find disagreement frustrating, does not necessarily establish misconduct.

Authority:

People v. Armstrong (2016) 1 Cal.5th 432

People v. Allen and Johnson (2011) 53 Cal.4th 60, 71

Third Holding:

If a juror’s willingness or ability to continue deliberating is unclear, the trial court must take care that its investigation is neither too cursory nor intrudes too deeply into the jury’s deliberative process to avoid invading the sanctity of the deliberations or creating a coercive effect on those deliberations.

The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge.

Authority:

People v. Cleveland (2001) 25 Cal.4th 466, 485

Fourth Holding:

When reviewing the dismissal of a juror, the California Supreme Court has adopted a heightened standard of review that protects the defendant’s fundamental rights to due process and a fair trial. The juror’s inability to perform his or her duty must appear in the record as a demonstrable reality. This test is more comprehensive and less deferential than the substantial evidence test. Under both tests, the appellate court reviews the entire record and does not reweigh the evidence.

However, under the substantial evidence test, the court reviews the record in the light most favorable to the judgment and upholds it if there is credible evidence that could reasonably support the trial court’s decision to remove a juror. Under the demonstrable reality test, by contrast, we must determine whether the trial court actually did rely on evidence that supports removing the juror.

This heightened and “ore stringent demonstrable reality standard more fully reflects an appellate court’s obligation to protect a defendant’s fundamental rights to due process and to a fair trial by an unbiased jury. Under the more comprehensive and less deferential review applicable here, we consider the reasons that the trial court provided, identify the evidence on which the court actually relied, and determine whether the evidence manifestly supports the court’s conclusion that a juror is refusing to deliberate.

Authority:

People v. Armstrong (2016) 1 Cal.5th 432, 450-451

People v. Barnwell (2007) 41 Cal.4th 1038, 1052, 1053

People v. McGhee (2025) 17 Cal.5th 612, 634 [a juror’s ability to describe to the court the views of the challenged juror showed there was some discussion going on]

People v. Engelman (2002) 28 Cal.4th 436, 446 [Jurors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means; it is not required that jurors deliberate well or skillfully]

People v. Barton (2020) 56 Cal.App.5th 496, 515 [juror’s refusal to change her mind and her decision to no longer attempt to explain that decision to the other jurors did not amount to misconduct]

Fifth Holding:

An abuse of discretion in discharging a juror under section 1089 requires reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached but for the error.

Authority:

Authority
People v. Bowers (2001) 87 Cal.App.4th 722, 736 [applying the Watson standard]

People v. Watson (1956) 46 Cal.2d 818, 836

People v. Henderson (2022) 78 Cal.App.5th 530, 565 [discussing prejudice requirement]

Sixth Holding:

In some instances, removal of a juror was upheld. In Dixon, the discharged juror was not merely disagreeing with the other jurors. The trial court found that the juror was upset by a relative’s illness or by intimidation by the other jurors, and this emotional state inhibited the juror’s ability to deliberate. Based on its observation of the discharged juror’s demeanor, the court assessed that the juror had not been candid with the court about these effects on her ability to deliberate.

In Lomax, the discharged juror had prejudged the case but refused to share any of his reasoning with the other jurors, and the juror himself had said he was not able to consider the evidence or take part in the deliberations because of his conscientious objection to the death penalty.

In Samuels, discharge of a juror was upheld where the juror was distressed, asked to be removed, and told the court she could not follow her oath and lacked courage to impose the death penalty even if she were convinced the case required it.

Authority:

People v. Diaz (2002) 95 Cal.App.4th 695, 705,

People v. Lomax (2010) 49 Cal.4th 530, 591

People v. Samuels (2005) 36 Cal.4th 96, 131–133

Seventh Holding:

While a jury is instructed to try to achieve a unanimous verdict, the possibility of a hung jury is an inevitable by-product of our unanimous verdict requirement.

Authority:

People v. Barraza (1979) 23 Cal.3d 675, 683

Eighth Holding:

It cannot be said a juror has refused to deliberate so long as a juror is willing and able to listen to the evidence presented in court, to consider the evidence and the judge’s instructions, and to finally come to a conclusion and vote. This is precisely what Juror No. 1 did.

Applying the heightened standard of review that governs our assessment of a trial court’s decision to discharge a juror, and based on our examination of the record as a whole, we conclude that the court abused its discretion in discharging Juror No. 1 because her inability to perform her duty as a juror does not appear in the record as a demonstrable reality.

Authority:

People v. Barton (2020) 56 Cal.App.5th 496, 514

Ninth Holding:

On the facts in this case, there is no double jeopardy bar to retrial of the case.

Authority:

People v. Hernandez (2003) 30 Cal.4th 454 1, 9

Discretion, Due process, Duty of the court, Standard of review

Case 000745

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion and violated his right to due process when it denied a continuance to investigate and file a motion for a new trial after granting his motion to represent himself.

First Holding:

We review a trial court’s decision granting or denying a continuance for an abuse of discretion. Absent a showing of an abuse of discretion and prejudice, we will not reverse the trial court’s decision.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1118

People v. Doolin (2009) 45 Cal.4th 390, 450

Second Holding:

A trial court’s decision that is deemed an abuse of discretion has been described as a decision that exceeds the bounds of reason or as one that is arbitrary, capricious, patently absurd, or even whimsical. A court’s discretion, however, is not a whimsical, uncontrolled power. T

he scope of discretion always resides in the particular law being applied, i.e., in the legal principles governing the subject of the action. The court’s proper exercise of its discretion, therefore, requires knowledge and consideration of the legal principles essential to an informed, intelligent and just decision.

Where a ruling transgresses the confines of the applicable principles of law defining the scope of discretion, the court abuses its discretion.

Authority:

People v. Seigler (2025) 116 Cal.App.5th 596, 609

People v. Jacobs (2007) 156 Cal.App.4th 728, 737

City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297

People v. Lara (2001) 86 Cal.App.4th 139, 165

Third Holding:

In deciding whether to grant a continuance, trial courts may not exercise their discretion in such a manner as to deprive the defendant or defendant’s counsel of a reasonable opportunity to prepare.

That counsel for a defendant has a right to reasonable opportunity to prepare for a trial is as fundamental as is the right to counsel. The opportunity to prepare is no less fundamental when a defendant elects to proceed pro se.

While it is true that a defendant, who chooses to conduct his defense in pro. per. does so subject to the disabilities normally attendant upon the status as a prisoner, a pro se defendant must be given a reasonable opportunity to prepare a defense.

The denial of a continuance after a trial court grants a defendant’s request for self-representation could deprive a defendant of the opportunity to prepare a defense. To deny him that opportunity would be to render his right to appear in propria persona an empty formality, and in effect deny him the right to counsel.

Therefore, when a trial court grants a defendant’s request to proceed pro se, it has been held an abuse of discretion and a denial of due process to deny a request for a reasonable continuance to allow the in propria persona defendant to prepare a defense.

Authority:

People v. Sakarias (2000) 22 Cal.4th 596, 646

People v. Maddox (1967) 67 Cal.2d 647, 652, 653-655

People v. Cruz (1978) 83 Cal.App.3d 308, 324

People v. Wilkins (1990) 225 Cal.App.3d 299, 304-305

People v. Hill (1983) 148 Cal.App.3d 744, 756, 757

Fourth Holding:

Courts have made an exception only where the record demonstrates the trial court expressly conditioned the granting of an untimely Faretta motion on the defendant’s express waiver of a continuance.

Authority:

Faretta v. California (1975) 422 U.S. 806

People v. Jenkins (2000) 22 Cal.4th 900, 1038 [court warned the defendant that a request for a continuance would be a basis for denying Faretta motion, and the defendant accepted pro se status on the understanding that no additional time would be granted]

People v. Clark (1992) 3 Cal.4th 41, 110 [court granted Faretta motion only after the defendant “expressly represented he was able to proceed without a continuance], overruled on other grounds in People v. Pearson (2013) 56 Cal.4th 393, 462

People v. Rudd (1998) 63 Cal.App.4th 620, 626 [Faretta motion granted only after the defendant expressly stated he would be able to proceed without a continuance]

Fifth Holding:

The denial of a continuance may be so arbitrary as to deny due process. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. Instead, the answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.

Authority:

People v. Beames (2007) 40 Cal.4th 907, 921

Sixth Holding:

The trial court has broad discretion in ruling on a new trial motion, and its decision will be disturbed only for clear abuse of that discretion. Such an abuse of discretion occurs when the court bases its decision on an incorrect legal standard.

Authority:

People v. Iraheta (2014) 227 Cal.App.4th 611, 619

Seventh Holding:

To be sure, the text of section 1181 expressly limits the grant of a motion for new trial to the nine grounds enumerated in the statute. And ineffectiveness of trial counsel is not one of them.

Trial courts, however, have a duty to ensure that a trial is conducted with solicitude for the essential rights of the accused. That includes the right to effective counsel.

The Legislature has no authority to limit by statute a court’s constitutional obligation to ensure that a defendant is accorded due process. Therefore, our Supreme Court has stated that section 1181 should not be read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process of law.

In appropriate circumstances, the trial court should consider a claim of ineffective assistance of counsel in a motion for new trial, because justice is expedited when the issue of counsel’s effectiveness can be resolved promptly at the trial level.

Authority:

People v. Fosselman (1983) 33 Cal.3d 572, 582

People v. Clark (2016) 63 Cal.4th 522, 630

People v. Watts (2018) 22 Cal.App.5th 102, 117

Eighth Holding:

We take issue with the trial court’s determination that the defendant could raise the issues of ineffective assistance of counsel and late discovered evidence on appeal. Unless the record on appeal includes an explanation as to why trial counsel acted or failed to act in the manner challenged, or unless counsel was asked for an explanation and failed to provide one, a claim on appeal that trial counsel was ineffective is at risk of being rejected.

Under the circumstances in this case, the trial court abused its discretion and deprived the defendant of his right to due process. We remand the matter and direct the trial court to grant the defendant a reasonable continuance to investigate and file a motion for new trial.

Authority:

People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [claims of ineffective assistance of counsel are often more appropriately litigated in a habeas corpus proceeding]